International law - book notes PDF

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International law Chapter 1 – the nature of international law and the international legal system Key facts 1. International law sets out the rules that govern the relations between the members of international society, including sovereign states, international organizations and individuals. These ru...

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International law

Chapter 1 – the nature of international law and the international legal system Key facts 1. International law sets out the rules that govern the relations between the members of international society, including sovereign states, international organizations and individuals. These rules were mainly created by and for states, and nowadays they encompass more users and address far more issues. 2. The structure of the international legal order is fundamentally different from that of national legal systems. Besides the absence of a central legislative organ – that is, the equivalent of a national parliament – there is no international police or international judge as conceived in the domestic setting, but both enforcement and adjudication of international rules depend heavily on the consent of the states concerned. 3. International legal theory has long struggled with contemplating the nature of the international legal system. Theories such as formalism, positivism, or naturalism, which concern every category of law, have been complemented by schools that focus explicitly on international law, such as realism or policy- oriented approaches as well as by more contemporary theories like critical legal studies (CLS), feminism, and third world approaches in international law 4. There are different categories of norms in the international legal system; a common distinction could be between obligations of a contractual nature and obligations towards the international community as a whole (obligations erga omes). In addition, although there is no formal hierarchy among the sources of international law, there is a certain hierarchy of international norms: 1. Norms from which there can be no derogation and 2. Norms that are susceptible to derogation. Chapter 1 5. International law deals with international crimes like genocide, but it also regulates simple extradition of a common criminal to his state of nationality. 6. In the 21st century international law is called to address the needs pf the 193member states of the united nations, numerous international organizations, an indefinite number of non-state entities. 7. There is an absence of a central legislative organ – in domestic setting, rules spring from a centralized legislative authority on the basis of a well-defined constitutional framework – these rules are enforced by a central authority (the executive) and disputes are dealt with in the judiciary. 8. This is not reflected in international law – there is no international parliament or central legislative body. There is no central administration to enforce international rules nor an international court with mandatory jurisdiction. 9. States are not free to choose not to be bound by any rules whatsoever, rather they consent to be bound because of the mutual benefits generated as a result. International law is a chain that holds states and organisations together. 10. Peremptory norms are those that trump or should trump every other conflicting rule and from which there is no derogation. Peremptory norms include the prohibition of aggression, genocide, and torture, among others.

11. There is no real leader – the international legal system is horizontally structured, and this has consequences both in relation to its perception and its function. 12. All states are considered equal sovereign states – enshrined in art 2, para 1 UN charter. No supranational authority without their consent. 13. Key in international legal order is state consent and sovereign equality. 14. There is no central legislature, but all states may adopt or engage in practice generating customary law on a bilateral, regional, or universal level. So state is subjected to third party dispute settlement, let alone to the international court of justice, if it has not offered its prior consent. 15. States could not accept their subjection to a higher authority that could enact and enforce rules or settle disputes without their permission. 16. State consent remains paramount in the making and enforcement of rules. This was unequivocally illustrated in one of the first cases before the permanent court of justice – known as the lotus case and involves the lotus principle. 17. The lotus principle is- “whenever is not prohibited is permitted in international law” recently the international court of justice again used its rationale in the 2010 Kosovo advisory opinion – the court looked at whether international law prohibits the unilateral declaration of independence and it was found Kosovo was entitled to declare its independence. 18. Since lotus international law has grown gradually and evolved becoming more complex. It no longer relies on custom as its predominant source but rather on treaties. It also has come up with non-binding agreements or other declarations (sof law instruments) that reflect a more flexible approach. 19. More importantly it has placed human being at the centre of its attention with growing attention being placed on human rights law. 20. The UN general assembly (GA) is a plenary organ where states can discuss international issues, complemented by the UN security council, an executive organ that may take forcible action in case of a threat to international peace and security. 21. The international court of justice is where states can settle their disputes. The GA does not adopt binding resolutions and recourse to the ICJ is contingent upon the consent of the parties to a dispute. 22. The police powers granted to the security council are subject to the veto of its five permanent members. Fragmentation 23. Fragmentation of international law is due to its horizontal structure, it is possible for several legal regimes to exist (e.g. investment law and human rights law) and develop in isolation of each other, ultimately culminating in the production of divergent rules of international law. 24. There is a danger that one single case may end up in several courts and tribunals all which may decide the case differently. For example different aspects of a dispute between UK and Ireland in Mox Plant case were submitted at the same time to arbitration under the UN convention on the law of the sea and arbitration under the OSPAR convention, finally ending up before the European court of justice 25. In 2006 it published its report (martti on fragmentation of international law) -it published its report which included various methods of obviating such diversification of international rules, such as the use of the interpretive tool of art.31(3)(c) of the 1969 Vienna convention on the law of treaties (VCLT)

26. Equally important is the knowledge of the case law of all international courts and tribunals as well as what has been designated as “inter-judicial dialogue” – when national or international courts decide specific and delicate issues concerning international law. The courts should be aware of each other’s rulings, this does not mean that they have to adopt the exact same position but rather they should enter into a line of augmentation – which can be seen as unity and coherence of the international legal system. This is seen in the cases of application of the convention on the prevention and punishment of the crime of genocide (bosnia and Herzegovina v Serbia and Montenegro) -it disassociated that case from the one decided upon by the international criminal tribunal for the former Yugoslavia (Prosecutor v dusko tadic) And thus justified the adoption of the criterion of “effective control” rather than of “overall control” The nature of international law: theoretical approaches- theory has attempted since the seventeenth century to comprehend the nature of international law in various ways. Suffice it to refer succinctly to the following main stream: 27. Naturalism – it had been the prevailing approach in international law until the 19th century. Premised upon canon (church law) – naturalism addresses the question of the nature of international law by pointing to a set of rules that are of universal and objective scope. This approach was necessitated because these rules emanate from universal and superior values and principles that are eternal to mankind. Such values and principles dictate the limits of the legal system and the free will of the sovereign state. Naturalism is open to manifold criticism. More importantly it blurs the lines between law and morality and thus fails to distinguish international law from political theory or ideology. a. These principles can be identified by recourse to canon law or to universally accepted moral values. b. There are segments of naturalism even in the contemporary legal order, reflected principally through the notion of human rights. The idea that some fundamental rights such as the prohibition of torture or slavery and the right to liberty and security are universal and cannot be derogated stems from a naturalist perception of international society. 28. Positivism – if naturalism lies at one end of the jurisprudential spectrum then positivism lies at the other end. It is not based on universal and moral principles but on a structured and coherent legal system that is created by states in light of their interests and desires. In general positivism rejects any extra-legal considerations, such as self-standing and which can resolve its conflicts without recourse to external sources. Positivism blossomed at the end of the nineteenth century and was the dominant legal theory for many years. Jellinek advocated the extreme thesis that international law is based upon the self-restraint of states. Sovereign states enjoy the prerogative to comply with international law according to their own legal system and their own free will. International law is created because states choose to restrain themselves. On the other hand, Kelsen theory found in his book illustrates the legal system as a pyramid – according to him, law is valid only as a positive law. a. Positivism has equally encountered criticism, especially the strict self-restraint theory – for allegiance to the sovereign will of the state. It is hard to accept

the absence of factors such as morality in a discipline that is called to govern the relations of international society. 29. Realism – neither positivism or naturalism averted WW2 and so the system turned its back on those two theories and held that international law reflects a reality, 30. Formalism – it describes the process if discovering international rules. Law is whatever meets the requirements of a broadly accepted definition of law, regardless if this definition derives from naturalistic or positivist considerations. a. It resembles realism but infused with positivist features. For formalism, a certain rule becomes international law only when it takes the form of the three formal sources under art 38 ICJ statute, namely – treaty, custom or general principle of law. 31. Policy oriented approach – the premise that law operates against a social background. Its purpose is the prescription and application of policy in ways that maintain order in the international community while simultaneously achieving the community’s social goals. It stands on opposite footing of formalism and represents a very liberal and political perspective of international law. emphasis is placed on the law-making process and whether this reflects shared community values. The policyoriented approach has been criticized by states formerly belonging to the eastern bloc as being too western and capitalist. The nature of international law: new theories – various modern theories called new approaches – Critical legal studies- schools that emerged as a legal theory in the USA. These are namely schools of thought that are engaged in heavy criticism of the aforementioned theories. Such schools suggest that the nature of international law is limited because it is determined by language – which is biased and trapped in the conventional structures and politics and powers. 32. The feminist approaches – entered in the 1980’s – feminist scholars oppose male rationalist biases of international rules. The movement enters almost all chapters of the discipline and focuses more realistically on the aspects of international law, where inequality persists, and women still have a marginal or neglected international status. 33. Third world approaches to international law – debate challenging international law’s deficiencies with regard to the developing countries. Movement in the 1990’s Is there any hierarchy in international law? – international law operates under a horizontal structure of authority in which the subject of international law is equal and bound by legal rules only if they express their consent. The adoption of treaties is dependent on state consent, whereas custom requires consistent practice by some states and the explicit (verbal) or tacit (understood non-verbal) consent of other. It is not surprising that formal sources of international law (treaties, custom, and general principles) are not set out in a hierarchy. However his does not mean that there is no hierarchy in norms of international law. 34. Jus cogens norms – 1960’s the international law commission fuelled the discussion on the distinction norms, in drafing the VCLT – the idea was put forth that not all rules of international law should have the same juridical value – therefore there are some norms which no derogation should be allowed. These peremptory norms of

international law reflect the most fundamental values of international society. They stand at the top of the pyramid. This construction was laid down in article 53 VCLT – stipulating that “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Jus cogens can never be altered even by consent between certain states. While two states can deviate from a rule of jus dispotitivum like the prohibition of fishing within the territorial waters of foreign states, and conclude an agreement allowing it, this cannot occur in respect of the prohibition of genocide. Such agreements would be null and void. Such norms should include the prohibition of aggression, genocide, human rights and humanitarian law e.g. torture, slavery and apartheid. 35. Erga omnes obligations – international obligations that are not contractual in nature. Obligations erga omnes are of such a nature that all states have a legal interest in their performance. Hence in a breach of such obligation all states are entitled to raise the issue before political organs and invoke the responsibility of the wrongdoing state. 36. Article 103 UN charter – this provision is the key mechanism for enforcing sanctions adopted by the security council under art 41 UN charter. It sets forth “ in the event of a conflict between the obligations of the members of the united nations under the present charter and their obligations under any other international agreement, their obligations under the present charter shall prevail. E.g. in the case of bilateral business agreements or treaties vs sanctions by the UN security council – their obligations under the charter shall prevail. They would not be in breach of their agreements in implementing this resolution. Their obligations are not terminated to make way for the UN resolution but suspended as long as the sanctions are in force. a. Article 103 has served as the legal basis for the implementation of numerous sanctions regimes imposed by the united nations. The famous case of Kadi was taken to the ECJ which held that the EC regulation embodying the sanctions against al – qaeda imposed sanctions by the security council resolution 1267 was in breach of the right to be heard and the right to an effective remedy. According to the ECJ, these rights constitute fundamental principles of international law which not even the council can ignore.

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